CASE HISTORY

In 2002, Georgia became the first (and now only) state to conduct statewide elections with unverifiable voting equipment that has no means to the audit vote recording of actual ballots cast on Election Day.  Unbeknownst to us, the law at the time required that any new voting machines “shall have an independent audit trail of each vote cast”. None of the voting machines procured, piloted, allegedly certified, and acquired with $54 million of tax money had any form of audit trails that are independent of the vote recording process such as standard Voter Verified Paper Audit Trails that were available even at that time.

Prior to the acquisition, the need for audit capabilities, voter verification and recount retention had already been documented in Senate meetings, by the Fulton County Elections chief, in the state’s 21^st Century Voting Commission report, by the general public and in plaintiff Emails that were authenticated under oath by the former Assistant Elections Director. Therefore, the acquisition could not have been a mistake.

In July of 2006, after attempts fell short to resolve the problem through the legislature, a politically diverse group of plaintiffs filed a voting rights suit against former Secretary of State Cathy Cox and other officials. The Plaintiffs chose to file the case in Fulton County Superior State Court rather than federal court because there were more obvious violations of state law than federal law.

The lawsuit challenged the legality and constitutionality of the Diebold AccuVote TS R6 voting machines, state election procedures and Georgia Election Code laws used to conduct the elections. During the discovery period as the parties received documents and admissions from each other, more potential violations of law were identified, including those that involved both the Georgia and U.S. Constitutions. The suit was eventually expanded to include 13 counts. Some of the key Constitutional counts include:

·        Failure to require elections by ballot according to the Georgia Constitution;

·        Violation of Constitutional due process by not protecting the vote count;

·        Failure to provide protection equal to that for absentee voters in regards to voter verification, recount completeness and discrepancy investigation;

Two of those counts were filed to prevent the state from purchasing AccuVote TSX machines temporarily used in a 2006 audit trail pilot because, as the current Secretary’s own 2007 Voter Verified Audit Trail report admitted: “the sequential printing of the VVPAT paper ballots does not guarantee voter anonymity as required by Georgia law”. Those machines rolled up elections results sequentially into a sealed canister rather than cutting the ballots and dropping them into a secured ballot box.

The lawsuit was drawn up so that if the Plaintiffs won any single other single count against the currently used voting machines, procedures and election code, the state would be enjoined from using all of the machines and any procedures that violated the rights of the voters. When deposing the Defendants’ witnesses during the extensive discovery period, the Plaintiffs obtained key admissions that were over and above what was expected. Therefore, In March of 2008, the Plaintiffs filed a Motion for Summary Judgment on five of the counts, contending that there was no need for a trial since the Defendant’s own witnesses had admitted key elements of the case as necessary for a favorable judgment.

Immediately afterwards, the Defendants also filed a Motion for Summary Judgment requesting that all counts be dismissed without a trial. If a court is to uphold any such motion by either side there must be no dispute of material facts.

Oral arguments were eventually scheduled for September 8, 2008. These arguments are a formality since a judge’s decision must be based on the briefs that were previously submitted. That day, Judge Michael Johnson denied our Motion for Summary Judgment and upheld the Defendant’s motion to dismiss all counts. He also stated in court that he would produce a Final Order stating the rationale for his decision by the end of that week.

For the next few months Plaintiffs, media representatives, interested parties and even a state legislator repeatedly contacted the Judge’s staff attorney, Steven Jones, to get a copy of the order. During that time, Judge Johnson was reelected to another term while running unopposed. On February 20, 2009, one hour after a legislator called the judge’s office for the second time, the order was released.

After a quick review of the fairly simplistic order we were amazed to find that the court:

·        Never considered in its order, a shred of the extensive evidence we provided;

·        Made at least 6 conclusions that were in direct conflict with the evidence we presented in the case;

·        Made at least another 9 conclusions citing facts that were actually in dispute and thus should have required the court to conduct a trial;

·        Never ruled on nearly all of the arguments we presented;

·        Failed to rule or even understand several counts of the case;

·        Repeatedly lacked rationale as to why our arguments were invalid;

·        Misinterpreted key case law that confirms our constitutional arguments;

Because of this bizarre ruling, we have never been able to publicly present our evidence in an open court of law. Since there were Constitutional issues at stake, we prepared an appeal straight to the Georgia Supreme Court.

The appeal that was filed on June 1, 2009 cites two main thrusts of errors committed by the lower court. These are:

·        The court unjustly denied our right to a trial when it upheld the Motion to Dismiss and made 17 conclusions that were not supported by, or in direct conflict with, the evidence of the case.

·        The Court misapplied case law when it denied our Motion for Summary Judgment and ruled in conflict with all U.S. Supreme Court case law for ballot counting and recounting.

On June 30, 2009 the Defendants (known as Appellees) filed their response. On July 13, 2009, exactly three years after our initial filing, the Georgia Supreme Court heard oral arguments. At that hearing, we provided a supplemental brief, filed on July 17, 2009, citing 41 disputes of facts that were contained in the Defendants’ Supreme Court brief.

During the hearing, one of the justices requested a letter from the Defendants to detail a ballot access case that they cited as a U.S. Supreme Court ruling in their favor. We responded with our own letter explaining that:

·        The case cited was immaterial because it was not about ballot counting;

·        The Defendants have yet to cite a single U.S. Supreme Court ruling regarding ballot counting that is in their favor;

·        Virtually all U.S. Supreme Court case law regarding ballot counting and recounting is in our favor.

The Georgia Supreme Court is now in a difficult position. To rule against us, the justices will have to conclude that:

·        None of the 41 factual disputes that we have cited are valid;

·        All U.S. Supreme Court case law that strictly scrutinizes the fundamental right of ballot counting and recounting does not apply to this case;

We will soon learn if there is any justice left in Georgia.

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WE WILL DEFEND YOUR VOTING RIGHTS IN COURT TO SEEK RELIEF

FROM E-VOTING THAT CANNOT BE VERIFIED, AUDITED OR RECOUNTED

How It Happened:

In 2002, Georgia implemented electronic voting that cannot be verified, audited, or recounted.. In 2004, just 2 years after a $54 million electronic voting “revolution”, Free Congress Foundation ranked Georgia dead last nationally in voting systems and procedures. The reasons are simple:

• No Georgia voter can verify that their ballots were cast correctly;
• No poll worker can verify that any voting machine counted votes correctly and;
• Recounts are now impossible since the equipment can only reprint previous unverifiable results;

When the machines were evaluated, several computer professionals and concerned citizens who are part of our organization explained both verbally and in writing to state election officials, including Professor Britain WIliams who headed the evaluation, that:

• The voting machines under evaluation can be accidentally or intentionally programmed in a variety of ways to count differently on election night then than during a certification;
• The machines selected for evaluation had no external audit trails to verify their accuracy;
• At least two other machine vendors offered paper ballot audit trails with their machines;

In spite of our concerns and similar concerns raised by county and state officials as well as the genral public, the Secretary of State (S.O.S.) installed these systems statewide in several against the will of the people and counties. Once implemented, the new procedures:

• Removed all direct physical evidence of voter intent from Georgia elections;
• Reduced the percentage of auditable ballots cast in Georgia from about 82% to 0% and;
• Allowed fraud and errors to become virtually undetectable statewide.

The Diebold AccuVote TS R6 series machines they purchased have been the subject of scathing reviews by universities and state commissioned reports nationwide. For example, Johns Hopkins found that the software had “gross design and programming errors” and the Nevada Electronic Sys. Div. Chief reported to the S.O.S. that they were “a legitimate threat to the integrity of the election process”. California, Ohio, Nevada and Maryland have officially concluded that machines and procedures similar to those used in Georgia are inadequate to conduct elections in their states. Ca;iforni, Maryland and Ohio have even filed suit against the vendor.

What Been Done So Far:

We have tried executive and legislative branch options to preserve the integrity of Georgia elections since these machines were under evaluation and after they were selected. The brief history of the actions and responses from elections officials as well as both Democrat and Republican leaders is astounding:

• In 2002, S.O.S. Cathy Cox ignored the 21^st Century Voting Commission recommendation that: “the chosen system should have the capability to produce an independent paper audit trail of every ballot cast”;
• Cox and Elections Director Rogers, who now works for Diebold, adamantly opposed voter verified paper ballot audit trails (VVPBAT) and election night verification at the legislature while they publicly claimrf to support them;
• The State Elections Board bought eletronic poll books with the $17,000,000 that could have been used to purchase the secure printers the S.O.S. claimed were needed for external audit trails;
• In 2006, legislative leaders chose SB500 a 3 precinct self repealing audit trail pilot over our SB591 and HB790, bi-partisan bills with external audit trails and vote count protection procedures that gained the support of 10 civic organizations and independent parties;
• Gov. Perdue recently deferred inquiries to the S.O.S. in response to our direct appeal to eliminate unverifiable voting by executive order.
• For the 3 precinct SB500 pilot, Rogers insisted on purchasing newer Diebold equipment that still cannot produce an easily auditable ballot because they roll voting results into a sealed canister instead of cutting them into ballots like grocery store or gas pump slips.
• House and Senate Conference Committee members refused to dictate appropriate technology for the pilot and ignored our contention that newer Diebold machines are just as inappropriate for use now as the unverifiable voting machines were in 2002.

What We Are Doing:

The government officials we have trusted will not protect one of our most precious rights, therefore, we ahve been left with no choice but to file suit so that Georgia citizens can have the assurance that their vote was counted correctly and accurately. The good news is that key portions of the Georgia Constitution and Georgia Election Code protect our rights. There are also several state and federal precedents on our side as well as equal protection provisions. We have filed suit to protect our freedom. Our suit seeks three basic objectives that most any Georgia voter would expect in an election. These are to:

• Require that any technology used in Georgia must either be able to read or produce ballots as required by the Georgia Constitution;
• Provide for public, precinct level counting of votes to ensure that the machines tallied the votes correctly as required by Georgia Election Code.
• Stipulate in the event of similar discrepancies across precincts in a given race, that the state manually recount that race at no cost to the candidates or parties involved

If these principles cannot be achieved, then we must cease using electronic voting machines altogether. We urge you to join us in the fight to save Georgia by restoring the integrity of Georgia elections. Georgia needs your immediate help so that we can take appropriate legal action to restore voting that can be verified, audited and recounted. Freedom is not free. Please click the Donation button to contribute or mail your contribution to:

Voter GA    P.O. Box 808   Decatur, Ga. 30031

We are a volunteer organization so all money that you give will do directly offset the legal expenses of preparing a suit to preserve the principles of democracy in Georgia. See the Contribute page for information about special gifts for donors. Thank you.